- EFFECT OF SIGNATURE
By signing this Agreement, the person signing on behalf of Customer represents and agrees that s/he has the authority to bind Customer to these Terms & Conditions (together with the Scope of Work, the “Agreement”), and that the Agreement is a legally binding contract between Caruth Protection Services, LLC (“Caruth”) and Customer. The Agreement is effective as of the date of Customer’s signature herein. This Agreement is the only agreement between Customer and Caruth (the “Parties”), incorporates and supersedes any representation made to Customer regarding any Product and/or Service, may only be amended in writing signed by an authorized representative of Caruth, and may not be assigned by Customer without Caruth’s written consent. Any attempted assignment by Customer in violation of this paragraph shall be null and void. Caruth may assign this Agreement in whole or in part on written notice to Customer. Customer further represents and agrees that the execution of this Agreement does not violate the terms of any other contract, lease, or agreement with any other person or party. In the event Customer requires a purchase order, invoice, or other contract regarding any Product or Service, the terms of this Agreement shall control to the extent of any conflict.
- SCOPE OF WORK
Except to the extent the Scope of Work requires Caruth to deliver a written certification that Caruth’s written work product (a “Deliverable”) complies with applicable law, including regulatory standards, Customer understands and agrees that no Deliverable or verbal statement provided by Caruth is intended to be or shall be relied upon as a professional or engineering analysis, diagnostic survey, recommendation, or certificate of compliance. Customer understands and agrees that Customer alone is responsible for determining whether an engineering or other professional analysis of any Deliverable, Product, or Service is advisable and for securing the same. To the extent any oral or written communications between Caruth and Customer involve possible design or installation flaws or code compliance violations, unless expressly stated to the contrary in the Scope of Work, Customer agrees that it will not rely upon any such communications in any way. Unless expressly stated to the contrary in the Scope of Work, NOTHING IN THIS AGREEMENT IS TO BE CONSTRUED AS REQUIRING CUSTOMER TO DISCOVER OR REVEAL DESIGN/INSTALLATION FLAWS OR CODE COMPLIANCE VIOLATIONS.
- DISCLAIMER OF WARRANTIES; LIMITATION OF CARUTH’S LIABILITY
Customer understands and agrees that all Services, Products, and Deliverables are provided ‘AS-IS’ AND, TO THE FULLEST EXTENT ALLOWED BY LAW, CARUTH HEREBY DISCLAIMS ANY AND ALL WARRANTY, EXPRESS OR IMPLIED INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. Caruth hereby assigns to Customer any manufacturer warranty applicable to any Product purchased by Customer, and CUSTOMER AGREES THAT ANY SUCH MANUFACTURER WARRANTY SHALL BE CUSTOMER’S SOLE REMEDY IN THE EVENT OF ANY CLAIM, CAUSE OF ACTION, LOSS, OR DAMAGE OF ANY KIND ARISING FROM OR RELATING TO THE AGREEMENT OR ANY PRODUCT, SERVICE, OR DELIVERABLE (the “CLAIMS”). In the event a court of competent jurisdiction determines that the foregoing limitation of liability is invalid, voidable, or unenforceable for any reason, Customer agrees that CARUTH’S LIABILITY FOR ANY CLAIM SHALL BE LIMITED TO THE TOTAL SUM ACTUALLY AND TIMELY PAID BY CUSTOMER PURSUANT TO THE AGREEMENT. CUSTOMER HEREBY WAIVES ANY AND ALL RIGHTS AND DEFENSES AFFORDED UNDER ARTICLE 2 OF THE UNIFORM COMMERCIAL CODE.
Without limiting the foregoing, IN NO EVENT SHALL CARUTH BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR ANY ECONOMIC DAMAGE OF ANY CHARACTER, INCLUDING BUT NOT LIMITED TO LOSS OF USE OF CUSTOMER’S PROPERTY, LOST PROFITS, OR LOST PRODUCTION, WHETHER CLAIMED BY CUSTOMER OR BY ANY THIRD PARTY, IRRESPECTIVE OF WHETHER CLAIMS OR ACTIONS FOR SUCH DAMAGES ARE BASED UPON CONTRACT, WARRANTY, NEGLIGENCE, TORT, STRICT LIABILITY, OR OTHERWISE.
- TRANSFER OF TITLE
In the event Caruth installs any Product before all amounts owed under this Agreement (except monitoring fees) have been timely paid in full, title to such Product shall transfer to Customer only upon timely payment of all such amounts and Caruth shall retain a vendor’s lien in all such Products and may peaceably repossess them in the event Customer fails to timely pay all amounts owed. Customer shall reasonably cooperate with Caruth’s efforts, if any, to document or perfect such lien. In the event Customer pays all amounts owed before a Product is installed, title to the Product shall transfer to Customer at the time the Product is delivered or installation commences.
Customer shall pay all amounts owed under the Scope of Work no later than 30 days from the date of Customer’s signature on the Agreement (the “Effective Date”). Customer’s timely payment of all amounts due under the Agreement is a condition precedent to Caruth’s duty to perform any Service or provide any Product or Deliverable. In the event Caruth elects, as an accommodation to Customer, to begin work before all amounts owed have been timely paid, Caruth may immediately stop work, remove all installed Products from Customer’s premises, and terminate the Agreement as of the earlier of (1) Customer’s notice to Caruth in any form that Customer cannot or will not timely pay all amounts owed, or (2) the 31st day after the Effective Date. Any term of the Scope of Work notwithstanding, Caruth may, in its sole discretion, elect not to begin work or to stop work until all amounts owed by Customer are timely paid in full.
- UNFORESEEN COSTS
In the event the cost of any Product, Service, or Deliverable increases, or the scope of work required to perform a Service or install a Product increases, after this Agreement is executed for any reason outside the reasonable control of Caruth, Caruth shall submit an invoice to Customer detailing the increased cost, which invoice shall be due and payable within 30 days of delivery.
In the event Caruth’s performance of any obligation imposed hereunder is delayed or rendered impossible, impractical, or inadvisable in Caruth’s sole discretion as a result of an act of God, act or omission of Customer or its contractors or subcontractors, act of civil or military authorities, government regulation, fire, flood, epidemic, pandemic, public health control order, war, riot, strike, labor disruption, accident, damage to machinery or equipment, disruption to supply chain or manufacturing facility, transportation delay, or any other cause beyond the reasonable control of Caruth, whether or not similar to the foregoing, Caruth may in its sole discretion delay or suspend performance until such condition abates or terminate the Agreement without further liability to Customer. If Caruth terminates the Agreement pursuant to this paragraph, all amounts owed by Customer for work performed or materials ordered shall be immediately due and payable on demand.
- SITE FACILITIES
Customer shall furnish all necessary facilities for performance of its work by Caruth, adequate space for storage and handling of material, light, water, heat, local telephone, watchman and crane and elevator service, if needed, and necessary permits. Where wet pipe system is inspected/tested, Customer shall supply and maintain sufficient heat to prevent freezing of the system.
- SITE CONDITIONS
Caruth is not responsible for loss, damage, or delay due to the character, condition, or use of foundations, walls, or other structures not erected by it or resulting from excavation in proximity thereto, nor for damage resulting from concealed piping, wiring, fixtures or other equipment or conditions or water pressure. All shoring or protection of foundations, walls, or other structures subject to being disturbed by any excavation required hereunder shall be the responsibility of Customer unless otherwise specified in the Scope of Work. Customer represents and warrants the sufficiency of the structure to support any Products installed by Caruth and to facilitate the safe performance of any Services. Customer shall ensure that the relevant premises are ready for the performance of any Services or installation of any Product which is the subject of the Agreement, including, but not limited to, other materials, floor or suitable working base, connections, and facilities at the time Caruth is onsite. In the event Customer fails to strictly comply with this paragraph, Customer shall reimburse Caruth for any and all expenses caused by such failure upon demand.
- DELAYS CAUSED BY OTHER TRADES
Customer shall be responsible to coordinate the work of other trades (ducting, piping, electrical, etc.) whose work may affect or is a prerequisite to Caruth’s performance of Services or installation of Products, and Customer shall be responsible on demand for additional costs incurred by Caruth in connection with any interference caused by such other trades.
- TIME LIMITATION FOR CLAIMS
CUSTOMER MUST ASSERT ANY CLAIM AGAINST CARUTH WITHIN ONE YEAR OF THE DATE SUCH CLAIM ACCRUES, OR SUCH CLAIM IS WAIVED. It is the intent of the parties hereto to shorten the statute of limitations for any such Claim by Customer against Caruth to the fullest extent allowed by applicable law.
- CARUTH NOT AN INSURER OF SAFETY
Notwithstanding anything to the contrary in this Agreement, Customer agrees that (1) Caruth is not an insurer of Customer, persons working or otherwise present at Customer’s premises, or Customer’s property; (2) it is Customer’s responsibility to obtain adequate insurance covering Customer, persons present at Customer’s premises, and the contents of Customer’s premises; (3) Caruth’s charges are based on the deterrence and other value of the Products, Services, and Deliverables and Caruth’s limited liability under this Agreement, and are not based on the value of Customer’s property or premises or the potential extent or severity of personal injury to any affected persons; and (4) the Products and Services may not always operate as intended for various reasons, including Caruth’s failure or other cause. Caruth cannot predict the potential amount, extent, or severity of any damages or injuries that may be incurred by Customer or other persons which could be caused by the failure of the Products or Services to work as intended. As such, Customer agrees that the limits on Caruth’s liability herein and the waivers and indemnities set forth herein are a fair allocation of risks and liabilities, and that Customer will look solely to its insurer for financial protection from any risks and liabilities.
Customer hereby agrees that it will indemnify, defend, and hold Caruth and its employees, agents, representatives, contractors, and subcontractors (collectively, “Indemnitees”) harmless from and against any and all Claims, INCLUDING WITHOUT LIMITATION ANY CLAIM ASSERTING THE NEGLIGENCE OF ANY INDEMNITEE. Customer’s indemnity obligation shall apply without regard to the measure of damages involved and shall apply without limitation to Claims for actual, consequential, special, and exemplary damages, and to any cost, expense, attorney’s fees, costs of court, litigation expenses, or other financial loss of any kind Caruth suffers as a result of a Claim.
- CHOICE OF LAW AND VENUE
This Agreement and any Claim arising out of or related to this Agreement or any Product, Service, or Deliverable shall be interpreted pursuant to the laws of the State of Texas without reference to any choice of law principles, and exclusive venue for any such Claim shall lie in a state or federal district court sitting in Dallas County, Texas.
Customer represents and agrees that it has, or will obtain, commercial general liability insurance, including product and completed operations coverage, with coverage of at least $1,000,000.00 per occurrence, and which applies to any work performed by Caruth. Such policy or policies of insurance must name Caruth as an Additional Insured. Customer must provide evidence of such insurance coverage upon request by Caruth.
In the event a court of competent jurisdiction determines that any term of this Agreement is invalid, voidable, or unenforceable for any reason, such term shall be severed herefrom and the remainder of the Agreement shall remain in full force and effect.
For the purposes of any notice permitted or required to be given hereunder, such notice or notices shall be in writing to the addresses and the persons stated in the Agreement and shall be deemed given when delivered by personal delivery or deposited in the US mail with proper postage and address.
- CONFIDENTIAL INFORMATION
Caruth agrees to regard and preserve as confidential all Deliverables or other information regarding Caruth’s Products or Services that may be provided or developed as a result of the Agreement (the “Confidential Information”). Customer agrees to hold all Confidential Information in trust and confidence for Caruth and not to disclose such information to any person, firm, or enterprise, or use (directly or indirectly) any Confidential Information for its own benefit or the benefit of any other party, unless specifically authorized by Caruth in writing or as required and only to the extent required by law. If Customer discloses Confidential Information to its employees, it shall do so only on a “need to know” basis, after advising such employees of the confidential and proprietary nature of the Confidential Information and of the restrictions imposed by this Addendum, and after securing such employee’s written confirmation to abide by the terms of this Addendum with respect to protecting Confidential Information. All Deliverables and Confidential Information prepared in connection with the Agreement and all tangible and intangible rights therein shall belong exclusively to Caruth.
Caruth may terminate this Agreement on written notice to and without further liability to Customer, and may retain all amounts previously paid hereunder, if (1) Customer breaches any term of this Agreement, (2) Customer or its contractors or subcontractors interfere with Caruth’s performance of the Agreement, or (3) if any property of Caruth on Customer’s premises is damaged, attached, subjected to a lien, or seized by process of law. Additionally, Caruth may terminate this Agreement on 30 days’ written notice to Customer for any reason or no reason, but in that event shall return to Customer any paid but unused portion of the funds owed under this Agreement (except monitoring fees).
In the event the Scope of Work requires Caruth to provide alarm monitoring services, the following terms shall also apply:
- All monitoring fees are due in the manner and by the date set forth in the Scope of Work.
- Customer is solely and exclusively responsible for providing and maintaining adequate and consistent electrical and telecommunications facilities and service as recommended by Caruth.
- Caruth may increase monitoring fees in its sole discretion once every 12 months.
- Customer is solely responsible for identifying any service disruptions caused by an equipment failure or the failure to provide sufficient electricity or telecommunications facilities or services, requesting an inspection and any necessary repairs from Caruth, and paying the cost of all such inspections and/or repairs.